Imposing a code of ethics on Supreme Court justices is an idea that, like much of the rest of American politics, has split proponents and opponents down the middle.
Justice Samuel A. Alito Jr. said neither Congress nor the White House is empowered to dictate conditions to the high court and any attempt to do so upsets the balance among the three coequal branches of government.
Justice Elena Kagan said some congressional meddling is necessary so the court does not become immune to the checks and balances that apply to the other branches of government.
“We’re not imperial, and we too are a part of a checking and balancing system in various ways,” Justice Kagan said during a judicial conference in Oregon this month. “Congress, when it decides whether to pass legislation … ought to, and usually does, consider the constitutionality of its own actions.”
She acknowledged that “the nine of us have a variety of views about this,” according to coverage of her remarks by The Associated Press.
The debate came roaring to the forefront after a series of articles accused some Republican-appointed justices of taking trips sponsored by wealthy people who may have business before the high court.
Liberal activists have drawn broader contours with condemnations of the court’s landmark rulings on abortion, gun rights and affirmative action, but they have struggled to find an outlet for their anger.
Calls to either pack the court with more members or impose term limits on justices have foundered, leaving activists itching to strike back at Supreme Court members and pinning their hopes on ethics legislation.
Carrie Severino, president of the Judicial Crisis Network and a former clerk for Justice Clarence Thomas, has been the focus of recent ethics articles. She said liberal activists are trying to “bully the court.”
“This is part of a clear strategic and coordinated and calculated attempt to create the appearance of unethical behavior where there is not any and specifically because of rulings that upset particular members of Congress,” she said.
She said a Senate Democratic bill designed to impose a code of ethics on the justices is unconstitutional.
Justice Alito told The Wall Street Journal this summer that the high court derives its power straight from the Constitution, not the laws of Congress.
“Congress did not create the Supreme Court,” he said. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Carolyn Shapiro, a professor at Chicago-Kent College of Law and a former clerk to retired Justice Stephen G. Breyer, said Congress has previously regulated the Supreme Court, including its jurisdiction. She said ethics standards from Capitol Hill make sense.
“A standard ethics code that tracks more or less what is in place with the lower courts seems to be, to me, well within congressional authority,” she said.
Senate Democrats share that view.
In a party-line vote, they pushed legislation through the Judiciary Committee last month requiring the court to develop a code of ethics and a system to police the justices’ adherence. The justices would be prodded to better explain their decisions on whether to recuse themselves from hearing certain cases.
Given the close division of power in the Senate and the Republicans’ control of the House, Sen. John Kennedy, Louisiana Republican, said the Democrats’ bill is “as dead as fried chicken.”
Justice Thomas, the court’s most senior member, has been the focus of ethics scrutiny after ProPublica reported that Harlan Crow, a major Republican donor, paid private school tuition at Hidden Lake Academy and Randolph-Macon Academy for Justice Thomas’ great-nephew. Justice Thomas took in the boy to raise from age 6.
The tuition total could have cost more than $150,000, according to ProPublica. Justice Thomas did not disclose the payments in his financial disclosure forms, and the news outlet suggested that he ran afoul of ethical standards required of federal judges on lower courts.
Other reports by ProPublica, The Washington Post and The New York Times questioned arrangements such as generous salaries for Republican-appointed justices to teach at George Mason University’s Antonin Scalia School of Law.
Justice Thomas defended his friendship with Mr. Crow. He said he consulted with colleagues about disclosure requirements and didn’t skirt any rules.
In June, Justice Alito published an op-ed in The Wall Street Journal rebutting a forthcoming piece accusing him of ethics violations.
Chief Justice John G. Roberts Jr. said the court generally follows the code of ethics binding on lower courts.
He said all justices must file disclosures for review by the Judicial Conference Committee on Financial Disclosure and follow lower court policies on recusals. He noted that the system is flexible, given the composition of the high court.
He said the justices have faced increased threats and sometimes do not disclose travel arrangements for security reasons.
The chief justice has rebuffed Senate Democrats’ calls to testify to Congress. He said that would upset the balance of power.
Instead, he submitted a letter to the Senate Judiciary Committee with a statement of ethics principles and practices that the court follows. All nine current members signed it.
That statement laid out rules governing outside income, teaching and recusals. It noted that justices sometimes do not report travel because of security issues.
Mike Davis, president of the Article III Project and a former clerk to Justice Neil M. Gorsuch, said the statement amounted to a united front.
“Any Democrat justice who now deviates from that unanimous statement looks like they are dipping their toes in the political waters,” he said.
The Constitution says justices serve as long as they exhibit “good Behaviour” but lays out few limits on the high court other than that members can be impeached.
The founding document gives Congress the power to create lower courts, and Chief Justice Roberts said in his 2011 end-of-year report that Capitol Hill can impose ethics rules on district and circuit court judges.
“That reflects a fundamental difference between the Supreme Court and the other federal courts,” he wrote.
He said Congress has directed justices to comply with financial reporting requirements, which the court’s members do voluntarily, but the court has “never addressed” whether Congress has the power to impose those requirements.
• Stephen Dinan contributed to this report.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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